B-75891, MAR. 1, 1957

B-75891, MAR. 1, 1957

TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1957, FILE G-39716, CONCERNING YOUR CLAIM FOR $8,310.19 ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR TRANSPORTING 220 CARLOADS OF ARMY VEHICLES, TENTS, GUNS, AND ARMY PERSONNEL ACTING AS GUARDS, FROM HOLLY RIDGE, NORTH CAROLINA, TO BARSTOW, CALIFORNIA, IN JANUARY 1942, UNDER FIVE GOVERNMENT BILLS OF LADING.

THE MATTER OF THE ALLOWABLE CHARGES FOR THE TRANSPORTATION IN QUESTION WAS THE SUBJECT OF THE DECISION DATED NOVEMBER 4, 1948, B 75891, WHICH SUSTAINED THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL NO. 39716-CL-A FOR $4,965.90 ADDITIONAL CHARGES. THE BASIS FOR SUSTAINING THE SETTLEMENT AT THAT TIME WAS (1) THAT THE CARLOAD MINIMUM WEIGHT TO BE PROTECTED IN COMPUTING THE FREIGHT CHARGES ON THESE FIVE MOVEMENTS WAS THAT FOR STANDARD LENGTH CARS, AND (2) THE RATES AND WEIGHTS USED BY YOU IN YOUR CLAIM WERE AT CONSIDERABLE VARIANCE FROM THE RATE AND WEIGHTS USED IN YOUR ORIGINAL AND PRIOR SUPPLEMENTAL BILLS.

YOUR PRESENT CLAIM REQUESTS RECONSIDERATION OF THE DECISION OF NOVEMBER 4, 1948, AND YOUR CLAIM FOR $8,310.19 IS IN THE FORM OF A STATEMENT SHOWING RATES AND WEIGHTS YOU CONTEND ARE CORRECT FOR ARRIVING AT THE ALLOWABLE FREIGHT CHARGES. THE WEIGHTS EMPLOYED BY YOU ARE IN SOME INSTANCES ACTUAL WEIGHTS IN EXCESS OF THE CARLOAD MINIMUM WEIGHTS APPLICABLE FOR A CAR OF THE LENGTH USED, AND IN OTHER INSTANCES THE WEIGHTS ARE THE CARLOAD MINIMUM WEIGHTS FOR A CAR OF THE SIZE USED EVEN THOUGH SUCH WEIGHTS ARE GREATER THAN THE CARLOAD MINIMUM WEIGHT FOR A STANDARD LENGTH CAR. YOUR CONTENTION IN THIS CONNECTION IS SUBSTANTIALLY THE SAME AS THAT CONSIDERED IN THE DECISION OF NOVEMBER 4, 1948.

IN ADDITION TO THE REASONS STATED IN THE CITED DECISION FOR DISAGREEING WITH YOUR VIEWS, ANOTHER REASON IS THAT THE PROCUREMENT OF TRANSPORTATION SERVICES BY TRANSPORTATION OFFICERS OF THE ARMY IS SUBJECT TO CERTAIN DEFINITE REGULATIONS. AMONG SUCH ARMY REGULATIONS IS AR 30-950, ISSUED JULY 1, 1936, AND EFFECTIVE ON THE DATE OF MOVEMENT. PARAGRAPH 6 OF THESE REGULATIONS PROVIDES THAT QUARTERMASTERS AND OTHERS, IN ORDERING CARS, SHOULD SPECIFY THE SIZE OF THE CAR DESIRED, TAKING INTO CONSIDERATION THE WEIGHT AND BULK OF THE ARTICLES TO BE SHIPPED, AND IT MAY BE PRESUMED THAT A TRANSPORTATION OFFICER ACTS IN ACCORDANCE WITH EXISTING REGULATIONS, CONSISTENT WITH THE URGENCY OR NECESSITY DEMANDED BY THE CIRCUMSTANCES SURROUNDING THE TRANSACTION.

IT IS NOTED THAT 203 CARS WERE REQUIRED FOR THE VEHICLES INVOLVED IN THE FIVE MOVEMENTS. OF THIS LOT, 113 STANDARD LENGTH CARS AND 90 EXTRA LENGTH CARS WERE FURNISHED. IN VIEW OF THE SHIPMENTS LOADED IN EXTRA LENGTH CARS WHICH WEIGHED LESS THAN THE MINIMUM FOR A CAR OF THE SIZE USED, IT SEEMS PROBABLE THAT 203 CARS OF STANDARD LENGTH WOULD HAVE BEEN SUFFICIENT TO ACCOMMODATE THESE VEHICLES AND, ACCEPTING YOUR VIEW AS TO THE MINIMUM WEIGHTS TO BE APPLIED, IT WOULD HAVE BEEN NECESSARY TO RETURN TO THE CARRIER AT HOLLY RIDGE, NORTH CAROLINA, THE 90 EXTRA LENGTH CARS SUPPLIED AND FOREGO SHIPMENT UNTIL THE CARRIER COULD SECURE 90 OTHER CARS OF STANDARD LENGTH. IT DOES NOT SEEM THAT SUCH A PROCEDURE WOULD BE IN THE BEST INTERESTS OF EITHER THE CARRIER OR SHIPPER, ESPECIALLY IN THIS CASE, WHERE SPECIAL TRAINS WERE MADE UP TO HANDLE THESE CARS.

THERE IS AMPLE AUTHORITY FOR THE PROPOSITION THAT A TARIFF ITEM WHICH REQUIRES THE PROTECTION OF THE CARLOAD MINIMUM WEIGHT APPLICABLE FOR A CAR FURNISHED AND USED, WHICH IS IN EXCESS OF THAT PROVIDED FOR A CAR OF THE SIZE ORDERED, WITHOUT PROVIDING THAT IF SUCH CAR IS FURNISHED AT THE CARRIER'S CONVENIENCE THAT THE MINIMUM WEIGHT FOR A CAR OF THE SIZE ORDERED WILL BE PROTECTED, IS UNREASONABLE. SEE BLATZ BREWING COMPANY V. UNION PACIFIC RAILROAD COMPANY, 248 I.C.C. 528; NATIONAL PAINT MANGANESE COMPANY V. SOUTHERN RAILWAY COMPANY, 291 I.C.C. 32. THIS SEEMS ESPECIALLY APT IN THE INSTANT CASE WHERE, FOLLOWING THE WELL-ESTABLISHED RULE ON GOVERNMENT TRAFFIC THAT IN THE ABSENCE OF A SPECIFIC SIZE OF CAR DESIGNATION A STANDARD SIZE CAR IS DEEMED TO HAVE BEEN ORDERED, 24 COMP. DEC. 48; 15 COMP. GEN. 599, AR 30-950, THE GOVERNMENT WOULD BE PUT TO EXTRA EXPENSE BECAUSE THE CARRIER DID NOT OR COULD NOT FURNISH 203 CARS OF STANDARD LENGTH, AT THE TIME REQUIRED, OR WITHIN A REASONABLE TIME THEREAFTER.

CONSIDERING YOUR REVISED COMPUTATION, WHEREBY YOU ARRIVE AT THE SUM OF $8,310.19 AS ADDITIONAL CHARGES DUE YOU, THE OBJECTIONS STATED IN THE DECISION OF NOVEMBER 4, 1948, ARE PERTINENT AS TO THESE AMENDED COMPUTATIONS, INASMUCH AS THERE IS CONSIDERABLE VARIANCE BETWEEN THE WEIGHTS EMPLOYED BY YOU AND THE WEIGHTS OF THE VEHICLES SHOWN BY THE CONSIST OF EACH OF THE SEVERAL CARS IN THE MOVEMENT. FOR EXAMPLE, ON BILL OF LADING WQ-3897981 (MAIN 50), ON WHICH YOU CLAIM ADDITIONAL CHARGES OF $4,136.80, YOU COMPUTE THE CHARGES ON THE FIRST 12 CARS ON YOUR REVISED COMPUTATION (PRR 474970 TO B AND O 106513) AT WEIGHTS VARYING FROM "MIN" 15000 (B AND O 106513) TO 17,300 POUNDS (PRR 474970). THE ADMINISTRATIVE REPORT SHOWS THAT EACH OF THESE 12 CARS CONTAINED A "TRUCK GMC 2 1/2 TONS W/O WINCH," WEIGHING 9,810 POUNDS AND A "TRAILER, SEARCHLIGHT 1 TON," WEIGHING 1,456 POUNDS. THUS, THE TOTAL WEIGHT OF THE VEHICLES LOADED ON EACH CAR IS 11,266 POUNDS, BUT THE BASIS FOR WEIGHTS EMPLOYED BY YOU IS NOT APPARENT, SINCE EACH CAR CONTAINED THE SAME TYPE OF TRUCK AND TRAILER. THE RECORD IN THIS CASE CONTAINS NO EVIDENCE OF THE WEIGHING OF THE CARS LISTED ON THIS BILL OF LADING, AND IT IS NOTED THAT, WITH THE EXCEPTION OF CARS B AND LE 4446 AND NP 60406, EACH OF THE CARS COVERED BY THIS BILL OF LADING IS SHOWN BY THE ADMINISTRATIVE REPORT TO CONTAIN VEHICLES HAVING A TOTAL WEIGHT OF 11,266 POUNDS OR LESS.

SIMILARLY, BILL OF LADING WQ-5897987 (MAIN 51) CONTAINED 16 CARS WHICH WERE LOADED WITH THE SAME TYPE OF TRUCK AND TRAILER DISCUSSED ABOVE, SHOWN BY THE ADMINISTRATIVE REPORT TO HAVE A COMBINED WEIGHT OF 11,266 POUNDS. HOWEVER, YOU COMPUTE CHARGES ON THESE CARS AT UNSUPPORTED WEIGHTS VARYING FROM 15,200 POUNDS TO 17,100 POUNDS PER CAR. ON THE REMAINING 28 CARS IN THIS MOVEMENT YOU HAVE COMPUTED CHARGES AT WEIGHTS VARYING FROM 14,040 POUNDS (SAL 46270) TO 22,100 POUNDS (ACL 76623). THE ADMINISTRATIVE REPORT SHOWS THAT EACH OF THESE CARS CONTAINED A "TRUCK GMC 2 1/2 TON W/O WINCH," WEIGHING 9,810 POUNDS AND A "POWER PLANT," WEIGHING 7,985 POUNDS, MAKING A TOTAL WEIGHT OF 17,795 POUNDS FOR EACH OF THE 28 CARS, AND YOU WERE ALLOWED SETTLEMENT ON THAT BASIS.

THE SITUATION IS THE SAME WITH RESPECT TO BILL OF LADING NO. WQ 3897989. YOU SHOW CAR SOU 117141 AS WEIGHING 16,760 POUNDS, WHEREAS THE ADMINISTRATIVE REPORT SHOWS THIS CAR AS BEING LOADED WITH ONE 1/2 TON TRUCK WEIGHING 4,400 POUNDS. ON THE OTHER HAND, YOU SHOW CAR FEC 7141 AS WEIGHING 16,700 POUNDS, WHEREAS OUR RECORDS SHOW THAT THIS CAR WAS LOADED WITH A 6-TON 6 BY 6 CORBIT TRUCK WEIGHING 22,070 POUNDS, AND YOU WERE PAID ON THE RATE AND CARLOAD MINIMUM WEIGHT PRODUCING THE LOWEST FREIGHT CHARGES FOR A VEHICLE OF THAT WEIGHT.

ACCORDINGLY, SINCE THE PRESENT RECORD CONTAINS NOTHING WHICH WOULD JUSTIFY MODIFICATION OF THE DECISION OF NOVEMBER 4, 1948, IT IS AFFIRMED.